Federal Court of Australia

Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1135

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed under r 36.75 of the Federal Court Rules 2011 (Cth).

2.    The Appellants pay the First Respondent’s costs as agreed, taxed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

PERRAM J:

1    This appeal was listed for hearing at 10.15 am today, Monday 20 September 2021. The subject matter of the appeal concerns the decision of the Federal Circuit Court to dismiss an application brought by Mr and Mrs Patel to quash an earlier decision of the Administrative Appeals Tribunal (‘Tribunal’). The proceeding before the Tribunal concerned a decision by a Delegate of the First Respondent to refuse Mr Patel’s application for a Student (Temporary) (Class TU) (Subclass 500) visa. On Friday 17 September 2021 at 6.49 pm AEST my Associate received the following email from Mr Patel:

Respected All,

I am aware about the court hearing date and time fixed for the matter via Microsoft Teams scheduled for 20th September 2021.

I was trying my best to attend the hearing on that day in spite of the fact that I was suffering from an ear infection for some time now. Unexpectedly, my ear infection condition has gotten worse. Hence I visited the doctor today and he advised me for further investigation with a specialist Audiology. He has also advised giving due rest to ears by staying away from loud noise environments and electronic audio devices.

My next appointment/booking is with the ear specialist on 27 September 2021. I have attached the evidence for that.

Add to that, I had surgery on my left hand a few weeks ago at Royal Darwin Hospital. I am still within the advised rest period. I have attached the evidence of the same. Also my wife Falgunibahen Patel is currently on treatment for High blood pressure which requires full care and support. I have attached the evidence of the same.

With all these health conditions and my continued work commitments as Night Auditor, I am not only Physically unfit but Mentally stressed and completely out of focus to attend this meeting/hearing to do any justice to myself.

Based on my situation, please grant me exemption for this hearing and advise me of the possible next available time and date.

2    Enclosed with the email were two medical certificates. The first related to Mr Patel and was relevantly in these terms:

This is to certify that the above named person has hearing problems and advised to stay away loud noises and electronic devices. he has been referred to audiologist for further investigation. This is causing him headaches and affecting his concentration, which made worse by loud noises.

Yours sincerely,

Dr Suniel Reddy

MBBS, FRACGP, ABAARM, FAAMM

3    The second related to Mrs Patel and was relevantly in these terms:

THIS IS TO CERTIFY THAT

Mrs Falgunibahen Patel has high blood pressure and started on treatment

Dr Suniel Reddy

5134273X

MBBS, FRACGP, ABAARM, FAAMM

4    At 8.42 am this morning my chambers responded to Mr Patel’s email referred to at [1] above in the following terms:

Dear Mr Patel

His Honour will consider your application for an adjournment at the hearing at 10.15 am. His Honour will, at that time, also ascertain the Minister’s position on any adjournment.

His Honour asked me to convey that, while he will hear from you and also from the Minister’s representatives before forming a concluded view on the matter, his Honour does not presently read Dr Reddy’s reference to ‘electronic devices’ as including listening to voices during a hearing conducted by Microsoft Teams. On the face of it, an adjournment does not therefore appear to be warranted.

Please click on the link before 10.15 am to join the hearing.

5    At 9.45 am this morning my chambers received the following email from Mr Patel:

I appreciate for letting me know. Please note that I am suffering right now continuously severe Headache and mild Fever increasing from couple of days due to Ears problems affects suggested by Doctor.

I request all respected parties involved to consider this situation which leads me incapable/unfit to attend hearing today.

Regards 

6    The matter was called on for hearing at 10.15 am at which time Mr Johnson of Counsel appeared for the Minister. I stood the matter down for 10 minutes and instructed my Associate to send another email to Mr Patel to inform him that the hearing had commenced and was proceeding. I then adjourned and the hearing resumed at about 10.32 am. At that time Mr Patel had still not joined the hearing.

7    I propose to treat the email which was sent on Friday evening and renewed this morning as an adjournment application by Mr Patel and Mrs Patel. I am not minded to accept the reason which is set out in the medical certificate given by Dr Reddy in relation to Mr Patel. The certificate suggests that Mr Patel should stay away from loud noises. That may be accepted. I do not think that the current hearing would have involved loud noises. It also advises him to stay away from electronic devices. As I indicated to Mr Patel in the email this morning it is not self-evident to me that the reference to electronic devices in Dr Reddy’s certificate would include not sitting in front of a computer upon which voices are audible such as in a Microsoft Teams meeting.

8    I accept that it may be possible that Mr Patel was proposing to wear ear headphones/microphones connected to his computer. But that does not seem to me to advance his cause. I accept that the wearing of such a device would be contrary to Dr Reddy’s advice, however it would be easy to solve that problem by not wearing such a device and simply to use the microphones/speakers built into the computer. I did not apprehend Mr Patel to contend that he did not have access to a computer and indeed my Associate conducted a test of the capacity of the hearing to be conducted on Microsoft Teams at an earlier time. I accept that Mr Patel may be suffering from headaches which may be affecting his concentration however I do not think that provides a sufficient basis to adjourn the proceeding.

9    Turning then to the position of Mrs Patel, I accept as Dr Reddy has said, that she is suffering from high blood pressure and that she has started on treatment for that. I do not accept that that provides a sufficient reason not to attend the hearing.

10    Because of the emails which were sent by my chambers this morning I think that Mr and Mrs Patel have had adequate notice of the fact that the adjournment application would be dealt with at the hearing. I do not think there is anything procedurally unfair in that circumstance in proceeding to deal with it in their absence.

11    For the reasons I have just given, I refuse the application for an adjournment.

12    Rule 36.75 of the Federal Court Rules 2011 (Cth) is in the following terms:

36.75 Absence of party

(1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:

(a) if the absent party is the appellant:

(i) the appeal be dismissed; or

(ii) the hearing be adjourned; or

(iii) the hearing proceed only if specified steps are taken; or

(b) if the absent party is the respondent:

(i) the hearing proceed generally or in relation to a particular claim for relief in the appeal; or

(ii) the hearing be adjourned; or

(iii) the hearing proceed only if specified steps are taken.

(2) If a hearing proceeds in a party's absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a) setting aside or varying the order; and

(b) for the further conduct of the hearing.

13    This is a case where it may be said that the absent party is the ‘appellant’ within the meaning of r 36.75(1)(a). In that circumstance I propose to exercise the power in r 36.75(1)(a)(i) and dismiss the proceeding on the basis that Mr and Mrs Patel were absent from the hearing.

Associate:

Dated:    20 September 2021